In the midst of all of the inauguration excitement this weekend, I missed an interesting little copyfight. First things first: this week’s episode of Fox’s “Glee” features a cover of “Baby Got Back” by Sir Mix-A-Lot. Yes, really. But since the rapper’s version doesn’t exactly jibe with either the show’s babyfaced cast or its white-bread, choir-obsessed audience, a faithful cover wouldn’t do.

But rather than spend some of their approximately $3.5 million per-show budget paying an arranger to set the text, they just went with a 2005 cover that was already floating around the Internet, by singer-songwriter/comedian/professional geek Jonathan Coulton. They apparently didn’t even contact him about it. Slate explains the legalese:

So, if Coulton’s accusations turn out to be true, what legal recourse might he have? Fortunately, copyright law is pretty clear on the issue. An arrangement like Coulton’s is technically called a “derivative work,” because it is based on a pre-existing “original work” (Sir Mix-A-Lot’s original rap song). In order to create his arrangement and sell it, Coulton obtained a compulsory (or “statutory”) license from the copyright holder, the Harry Fox Agency. Coulton himself does not own the rights to Mix-A-Lot’s lyrics, of course, but, according to the U.S. Copyright Office, “the copyright of a derivative work covers … the additions, changes, or other new material appearing for the first time in the work.”

Fox probably acquired the license for the Sir Mix-A-Lot song, but Coulton also owns the rights for the derivative work. And the funny thing about the “Glee” version is that it even copies one of Coulton’s ad-libs, not to mention its melody, chord changes, and instrumentation. Coulton would still probably have a case if “Glee” had modified any two or three of those things, but what really stands out is how lazy the adaptation is.

Here’s the “Glee” version:

And Coulton’s original arrangement:

Mike Masnick praises Coulton for taking the “shaming” approach to the whole thing, while noting, had he been the one ripping off News Corp, it probably wouldn’t have happened that way:

Of course, as a public storm of support rises behind Coulton, it seems likely that Fox/Glee producers will step up, apologize and probably cut Coulton a check of some sort. All of that seems a lot more efficient — and it didn’t require copyright law at all. Just a bit of public shaming for a bad actor. Of course, just imagine if the situation had been reversed, and Coulton was caught making use of a News Corp.-owned song.

It’s definitely uncool that Coulton wasn’t contacted before “Glee” released an arrangement of his song which now has about a half-million views on YouTube, but we don’t know that he wouldn’t have been attributed in the credits because the episode hasn’t aired yet. Given the outcry, I can’t imagine Fox won’t at least go that far.

Stephen Kinsella, an anti-copyright absolutist, doesn’t see what the big deal is, and doesn’t think there’s even an obligation to attribute your source material when reusing or remixing a work. He writes:

… in my view, even if there was no attribution credit given, there is still nothing wrong whatsoever here. It’s not as if the producers of Glee are being dishonest and claiming to have come up with the arrangement on their own; there is no “plagiarism” going on here.

Except that’s exactly what they’re doing. There’s some murky ground here depending on how much the arrangement varies from the original, but the “Glee” version is almost identical to Coulton’s, borrowing his melody and changes, and by not providing attribution they’re suggesting it’s just like all the other songs used in the show.

Having seen Coulton play the song live, twice, alongside frequent tourmates and hometown heroes Paul and Storm, I am outraged.

As someone who would love to see IP abolished i its entirety, I can’t say that I sympathize with Coulton (also, I think his music is terrible, which doesn’t endear much sympathy with me, either). With my biases disclosed, here are some things I think are worth pointing out:

1. Coulton “stole” “Baby Got Back” from Sir Mix-A-Lot. Now, Coulton certainly modified what he “stole,” but it doesn’t change the fact that he “stole.” The difference between a remix of a song and a straight-up copy is mostly a matter of degree. Saying that one is wrong while the other is not is logically untenable.

2. There’s always the possibility that this wasn’t actually stolen. I write and compose songs for fun, and once when I was playing around with chord progressions I landed on what I thought was a very pretty and original progression. A couple of weeks later, I discovered that I’d basically created Pachelbel’s Canon in D. Another famous example of this is Weezer’s “The Greatest Man That Ever Lived,” which shares a note progression with “Simple Gifts” (which also shares a note progression with a Copland work). Weezer came up with their note progression independently, but it still sounded like another’s work. Some musical ideas are obvious enough that their creation is inevitable.

I don’t think the odds favor this being the case with Glee’s alleged rip-off of Coulton, but then, white people turning trashy top 40 hits into piano pop isn’t exactly new (see: Folds, Ben). Given that song in question does sound like a Glee song, perhaps the arrangement was inevitable. (To figure out whether it was, ask yourself if Glee song writers could have arranged the song differently while still getting it to sound like a Glee cover.)

3. Coulton isn’t exactly hurting from being ripped off. Because he took to Twitter to lament how his theft had been stolen by someone else, hes basically getting free publicity and advertisements? Is he materially worse off as a result? Are song sales down because he got ripped off? Are people returning the song they bought from him so they can get the Glee version? How is Coulton worse off? His music is getting more exposure, and his sales (music and ticket) will likely go up as a result. If we had strict IP and Glee never ripped him off, it’s likely that he would be worse off as a result. Actually, it’s likely that, under a hyper-strict IP regime, he might not have been allowed to make his Sir Mix-A-Lot rearrangement in the first place.

Simon Grey says: “1. Coulton ‘stole’ ‘Baby Got Back’ from Sir Mix-A-Lot. Now, Coulton certainly modified what he ‘stole,’ but it doesn’t change the fact that he ‘stole.’ The difference between a remix of a song and a straight-up copy is mostly a matter of degree. Saying that one is wrong while the other is not is logically untenable.”

Except, he didn’t, at least according to Slate, as quoted by Mr. Bloom above:

“In order to create his arrangement and sell it, Coulton obtained a compulsory (or ‘statutory’) license from the copyright holder, the Harry Fox Agency.”

I’m not an IP absolutist myself, while I acknowledge how truly awful and unfair the system currently is.

@cka2nd & Leslie- I should have clarified what I meant by “stealing.” (I had hoped that putting the word in quotes originally would have indicate that I wasn’t using the word in its most obvious legal sense, but oh well.) I don’t believe that intellectual property exists in a real sense, but that it exists merely as a legal entity, and is entirely abstract. As such, I don’t think IP can be stolen at all (this would be a tautology.)

Therefore, when I say Coulton “stole” “Baby Got Back,” I’m not asserting that he didn’t get permission from the person who had a government-granted monopoly to regulate a specific expression of an idea. Instead, I’m asserting that Coulton’s creation was not entirely original to him when he created it (obviously it’s not since Coulton completely copied the lyrics). Obviously, no expression of any given idea is going to be completely original, since, if nothing else, a creator must at least draw from a medium of expression, and must therefore use someone else’s ideas. Further, since the idea to express something in a specific medium is not likely to be original, any given expression of an idea is probably going to have elements of plagiarism. This is not, in my mind, a bad thing at all, and therefore no one needs get upset that someone “steals” or “borrows” or “pays homage to” someone else’s expression of an idea.

Coulton didn’t steal anything. He got permission to make a cover with new arrangements.

And it would appear that Glee not only stole the arrangements Coulton made, they actually stole the recording he released. Listen closely, and the Glee version appears to have used the exact same recording as Coulton’s with the voices removed, and new ones dubbed in. They didn’t even bother to recreate the arrangement with a new orchestra. They literally stole Coulton’s instrumentals.